Mr. President, I came to the floor a month or two ago and indicated at that time that I had had conversations with my counterpart, the distinguished Senator from Kentucky, Mr. McConnell. I related to the Senate that Senator McConnell had…
Mr. President, I came to the floor a month or two ago and indicated at that time that I had had conversations with my counterpart, the distinguished Senator from Kentucky, Mr. McConnell. I related to the Senate that Senator McConnell had said to me that judicial nominations were very important to him. I said if that is the case, then they are important to me, and that I would do everything I could to expedite judicial nominations in spite of what had gone on in recent years relative to how Republicans had treated Democratic nominees of President Clinton.
As the majority leader, I take very seriously the Senate's constitutional duty to provide advice and consent with regard to all Presidential nominees, but especially judicial nominees. The judiciary is the third branch of our Federal Government and is entitled to great respect. The Senate shares a responsibility with the President to ensure that the judiciary is staffed with men and women who possess outstanding legal skills, suitable temperament, and the highest ethical standing.
In a floor statement I have given on more than one occasion--I just recounted one I gave--I expressed regret that the process for confirming judicial nominees had become too partisan in recent years. From 1995 to 2000, the Republican-controlled Senate treated President Clinton and his judicial nominees with great disrespect, leaving almost 70 nominees languishing in the Judiciary Committee without even a hearing. Some of them were there for 4 years with nothing happening. Of course, Republicans have had their complaints--most of which I feel are unjustified, but they are entitled to their opinion--about the way a handful of nominees were treated in the early years of the Bush administration.
The partisan squabbling over judicial nominees reached a low point last Congress when Majority Leader Frist threatened to use the so- called nuclear option, an illegitimate parliamentary maneuver that would have changed Senate rules in a way to limit debate on judicial nominations. It would have had long-term negative ramifications for this body. At the time I said that it was the most serious issue I had worked on in my entire time in Government, that the Republicans would even consider changing the rules so the Senate would become basically the House of Representatives. The Founding Fathers set up a bicameral legislature. The Senate has always been different from the House. That is what the Founding Fathers envisioned. That is the way it should continue. But the so-called nuclear option would have changed that forever.
The effort was averted by a bipartisan group of Senators that was unwilling to compromise the traditions of the Senate for momentary political advantage. I was never prouder of the Senate than when it turned back this misguided attempt to diminish the constitutional role of the Senate just to confirm a few more judges. I believed that had a vote taken place, that never would have happened. There were people who stepped forward. I had a number of Republicans come to me and say: I will not say anything publicly, but what is being attempted here is wrong. But remember, we only had 45 Democrats at the time, so we had to be very careful what would happen. Rather than take the chance on a vote, I was so happy that we had 14 Senators, 7 Republicans and 7 Democrats, who stepped in and said: That is not the way it should be. We were able to negotiate. As a result of that negotiation, we let some judges go that with up-or-down votes here, it wouldn't have happened. But it didn't work out that way.
We averted the showdown as a result of the goodwill of 14 Democratic and Republican Senators. It went away. That is the way it should have gone away.
But in the 2 years since the nuclear option fizzled, I have worked hard, first with Senator Frist and now with Senator McConnell, to keep the process for considering judicial nominees on track. I said then that if the nuclear option had been initiated, and I became leader, I would reverse it. I believed so strongly it was wrong, even though we would have had an advantage at the time.
As Senate leaders, we have worked hand in hand with the very able leaders of the Judiciary Committee, Senators Leahy and Specter. In the last Congress the Senate considered two Supreme Court nominees--I opposed both--Roberts and Alito. In hindsight, I did the right thing with the decisions they have made. But I worked with Senators Leahy and Specter to make sure both nominees received prompt, fair, and thorough consideration in the committee and on the Senate floor.
After Senate Democrats gained a majority in last November's elections, I publicly pledged that the Senate would continue to process judicial nominees in due course and in good faith. I explained that I could not commit to a specific number of confirmations because the right way to measure the success of this process is the quality of the nominees, rather than the quantity of nominees and, ultimately, judges. I said the Senate will work hard to confirm mainstream, capable, experienced nominees who are the product of bipartisan cooperation. President Bush made a wise decision at the beginning of this Congress by not resubmitting a number of controversial judicial nominations from previous years. I took that as a sign of good faith and have tried to reciprocate by working with Chairman Leahy to confirm noncontroversial nominees in an expeditious fashion.
So far this year we have confirmed three court of appeals nominees. Again in hindsight, that is three more than were confirmed in a similar year in the last Clinton term. But we have confirmed three, including a nomination to the Ninth Circuit about which there was some dispute as to whether the seat should be filled by a Californian or someone from Idaho. We have also confirmed 22 district court nominees, and we continue to vote on those at a steady pace.
The judicial confirmation process is working well. We have confirmed 25 judges. It is certainly working much better than it worked when there was a Republican Senate processing President Clinton's nominees. As a result, the judicial vacancy rate is at an all-time low. I have said on the floor and
publicly, this is not payback time with judges. We are going to treat the Republican nominees differently than they treated our nominees.
But all of this hard work cannot prevent good-faith disagreements about the merits of particular nominations. There is one nomination pending in the Judiciary Committee that has aroused significant controversy, the nomination of former Mississippi State Judge Leslie Southwick to the Fifth Circuit Court of Appeals. Senator Specter recently said that I told Senator McConnell that Judge Southwick would be confirmed by Memorial Day. Obviously, I can only commit to my own actions, not the actions of others. But I did urge strongly that the Judiciary Committee hold hearings on this, and they did. I urged strongly that this matter be moved as expeditiously as possible, and it has. I urged the Judiciary Committee to do everything it could to move this along, and they did. The problem was, the nomination proved to be controversial and, therefore, it has not moved forward.
The Judiciary Committee has not yet voted on Judge Southwick. But as reported in the press, some Republicans are already threatening to retaliate against the rejection of the Southwick nomination by slowing down Senate business. How much more could they slow it down? What has gone on this year is untoward. Cloture has been filed about 45 times on things that, really, I don't understand why they are doing what they do. To threaten, because of the Southwick nomination, that they are going to slow things down is absurd because they have already slowed things down. They were gearing up to oppose judicial nominees of future Democratic Presidents. That is what they have said. This is so senseless. I think the reaction would be completely unjustified.
My pledge that the Democratic majority would consider judicial nominees in due course and in good faith was hardly a guarantee that every Bush nominee would be confirmed. I was told early on that Judge Southwick was noncontroversial. He had a high rating from the ABA. He had participated in lots of cases. There was no problem. I accepted those representations and, after having accepted them, pushed very hard to move this nomination along. But the facts of his background and his decisionmaking are different than had been represented to me. The Judiciary Committee must still do its work with care, and it should only report those nominees who deserve a lifetime appointment to the Federal bench.
The nomination of Judge Southwick has already been treated more kindly than dozens of Clinton nominees, including nominees to the Fifth Circuit. We have held a hearing. I repeat, during the Clinton administration, almost 70 languished with no hearings. If Southwick has been unable to convince Judiciary Committee members of suitability for the Federal bench, that is his misfortune. Remember, about 70 nominations of President Clinton never even had a hearing. Southwick has had a hearing, and to this point, he has been unable to convince the Judiciary Committee he is the person for the job. Senator Leahy has stated that anytime Senators Lott and Cochran ask him to put him on the calendar for a vote, he will do so. They haven't asked him to do that yet. Why? Because at this stage it appears Democrats are going to oppose this nomination. But Senator Leahy said anytime they want to test the vote, they may do that.
I know the administration has sent Judge Southwick around to meet individually with Democratic Judiciary Committee members. Anytime they want that vote, they can have it. Chairman Leahy and I can only establish a process. We can't promise that the outcome of that process will be to the liking of Republican Senators.
The primary concern that has been raised by Judge Southwick is that he has joined decisions on the Mississippi Appellate Court which demonstrate insensitivity to the rights of racial minorities and others. For example, in the Richmond case, he voted to uphold the reinstatement, with back pay, of a White State employee who used a racial epithet about an African-American coworker.
I ask unanimous consent that the dissent in that opinion by Judge King be printed in the Record.
Judge Southwick says the decision was about technical issues, but the dissent in the case by Judge King is eloquent. I mean eloquent. I hadn't read that opinion prior to my conversations with Senator McConnell, but I have read it. I understand it. I have a totally different view than I had prior to reading that opinion.
The judge's words are eloquent. Here is part of what he said:
There are some words, which by their nature and definition
are so inherently offensive, that their use establishes the
intent to offend.
Race is a highly sensitive issue throughout the entire United States, but especially in the States that comprise the Fifth Circuit. It took the courageous action of judges, mostly Federal judges, on the Fifth Circuit especially, to carry out the Supreme Court's desegregation decisions and destroy the vestiges of the Jim Crow era. Yet even today no African American from Mississippi sits on that court, despite the many qualified African-American lawyers in that State. Concerns about Judge Southwick need to be seen in that context.
I say that Judge Southwick is not being looked at with lack of favor by the Judiciary Committee because of the color of his skin. It is because of his judicial participation in various opinions.
The members of the Judiciary Committee will decide whether to report
this nomination to the full Senate. If they choose to report the nomination, I will schedule action as quickly as I can. If they reject the nomination, that action will also be on the merits.
After I had read the opinion and understood the case, I visited personally with Thad Cochran. I think the world of Thad Cochran. I have served with him now in the Congress for 25 years. I have served with Senator Lott for 25 years. I went to both of them and said: I know how strongly you feel about Judge Southwick, but here are the facts. I read to them the dissent of Judge King. I read to them the full dissent. Anyone who cares to hear what Judge King had to say only has to look at the Congressional Record.
I also told them that the Magnolia Bar Association, the African American Bar Association in the State of Mississippi, opposes Judge Southwick. The NAACP opposes Judge Southwick.
Republican Senators may disagree with the decision of the Judiciary Committee when and if it comes, but they should not treat it as an affront or an outrage. It is simply the way in which the Founders envisioned the Senate would work as a partner with the President in deciding who is entitled to lifetime appointments to the Federal bench.
Again, the Judiciary Committee didn't stall Southwick. They scheduled a hearing at a time that was convenient to everyone. It was precise. It was to the point. Everyone was able to ask their questions. They had a full hearing. If he can't convince that committee that he is the man for the job, that is our process. Certainly, at a subsequent time, if and when we get a Democratic President, if they process these nominations in the manner that we have, that will be fine. It is the way we are supposed to work.
Whatever happens with the Southwick nomination, the Senate will continue to process judicial nominations in due course and in good faith, as I have pledged. I repeat, I know how strongly the distinguished Republican leader feels about judges. I think there are a lot of things that are just as important. He feels strongly about this. I accept that. But I would like everyone to look at the record as to what has happened with this nomination. It has been moved expeditiously. They can have a vote anytime they wish in the committee. There are votes that take place almost every Thursday. They can schedule it anytime they want. But I think it would be asking quite a bit for someone to think that when the committee of jurisdiction on an issue turns something down, we should take it up on the floor. That is not how things work.
I would only say, I would think, based on the decisions participated in by Judge Southwick, anyone who has any concern about the feelings of the members of the Judiciary Committee who are Democrats should read this record because it explains very clearly what the problem is in this case.
Mr. President, we were hoping to clear a number of the President's nominations today--the Export-Import Bank of the United States, two nominees we were ready to clear; the Securities Investor Protection Corporation, one, two, three nominations; the National Oceanic and Atmospheric Administration, we have someone there to clear; the Securities Investor Protection Corporation, we have an individual there who has been cleared on our side.
All these nominations have been cleared on our side. The holdups are with the minority. So we are trying to clear the President's nominations. We cannot do it unless the Republicans agree to it. They are his nominations.